July 2011 Archives

Whenever there is a law that says a person who did a specific thing has to suffer a specific punishment, with no exceptions, there will be an application of that law that ordinary people think is unfair.

In federal court, there are mandatory minimums in drug distribution cases. These mandatory minimums produce unfair results. People with minor involvement in cases can be required to serve massive sentences of ten or twenty years, and the judge who imposes that sentence has no lawful ability to go below that amount of time.

To make mandatory minimums ever so slightly less unfair, Congress has created something called a "safety value." It's in 18 U.S.C. 3553(f). In the sentencing guidelines, it's in section 5C1.2.

Basically, a person convicted of drug dealing qualifies for the safety value if they:

(1) didn't hurt anyone,

(2) didn't have gun,

(3) weren't in charge of the drug dealing,

(4) tell the government about their involvement in the drug dealing, and

(5) don't have much prior involvement with the criminal justice system.

The last requirement, that they not have much criminal history, is the subject of the Ninth Circuit's opinion in United States v. Yepez.

The requirement of minimal criminal history, stated more precisely, is a requirement that the person have no more than one criminal history point under the United States Sentencing Guidelines. Criminal history points are assessed as set out in section 4A1.1.

Basically, any conviction where the person serves no time, or less than sixty days in jail, gets one point. But, if the person is on probation during the crime that lands them in federal court, they will receive two additional points.

Mr. Yepez received a DUI conviction when he was 18. He was on probation for it when he drove some meth for someone else.*

Everyone agreed he met every requirement of being safety valve eligible, except he had three criminal history points. One for the original conviction, and two because he was on probation when he drove the drugs. As a result, instead of receiving a sentence of five years, the district court judge found that it had no choice but to sentence Yepez to ten years in a federal prison.

The Ninth Circuit, though, disagreed. Because Yepez's lawyer had gone back to state court and asked the state judge to retroactively end Yepez's probation the day before he committed the federal crime, the Ninth Circuit held that Yepez was not on probation when he committed the crime.

California law lets a judge change a prior order nunc pro tunc. The concept of a nunc pro tunc ruling is probably my favorite legal idea. Basically, it lets a judge time travel to a prior date and issue a ruling from that date that is in effect for all times in the future from that date.

So, as a matter of California law, the nun pro tunc change meant that Yepez wasn't on probation when he drove the meth. The Ninth Circuit held that meant he only had one criminal history point and, therefore, was safety valve eligible.

Senior District Judge Timlin, sitting by designation, dissented. Following the Eighth and Tenth Circuits, he would have said that the federal government doesn't care what a state court does nunc pro tunc. The feds, in essence, don't smile on that kind of time travel.

Personally, I hope not. These distinctions are undignified. A man will spend five years in prison, or not, depending on something as arbitrary as whether a state court judge has the power to change probation in the past.

If the act of deciding what sentence a person gets is a moral act, an act where we, as a society, show our judgments about how we think of justice and blameworthiness, then surely making such decisions turn on the technicalities of judicial time travel fails.

* According to the opinion, he thought it was marijuana. This is, of course, an odd defense. The district court, in any event, found it plausible, since the guy was only 20 years old.

What good is a hunch if you can't say why you have it? If you want to stay inside the Fourth Amendment, not much.

Stephen Digiovanni was driving through Maryland. He was stopped by the Maryland State Police for following too close to another car.

The officer who pulled him over, though, was a member of a Pro-Active Criminal Enforcement Team, a task force set up to investigate drug and terrorist activities. When the officer pulled Mr. Digiovanni over, he didn't see a man in his late fifties driving from Florida to Boston. No, this officer saw a drug trafficker.*

How did the officer know Mr. Digiovanni was a drug trafficker? The officer explained it was a combination of little things. For one thing, Mr. Digiovanni's car was clean. Also, it was a rental car. And he had some shirts hanging up in the back seat. Also, he had a hygiene bag with him. So, naturally, the officer suspected Mr. Digiovanni of being a drug trafficker.

The officer asked Mr. Digiovanni to step out of the car. He asked Mr. Digiovanni what his travel plans were and whether he had drugs. Mr. Digiovanni said he was traveling back to Boston from a trip to Florida and that he didn't have any drugs with him.

The officer asked Mr. Digiovanni if he specifically had any marijuana in the car. Mr. Digiovanni said that he had never smoked marijuana because it puts him to sleep.**

The officer asked if he could search the car. Mr. Digiovanni said ok. Luckily for him, he had trouble opening the trunk, so the officer gave up after three minutes, went back to the police car, and ran his license and registration.

When the license and registration check came back negative, the officer brought Mr. Digiovanni a warning ticket, his license, and his rental car registration. The officer told him that he was free to go, but his earlier consent to search was still in effect and couldn't be withdrawn. He gave Mr. Digiovanni a written consent to search form, which Mr. Digiovanni signed.

The officer, and a backup, found just over 34,000 pills of Oxycodone. He was charged in federal court in Baltimore with possession with intent to distribute Oxycodone.

Clearly, the driver of this car is carrying drugs.

Mr. Digiovanni filed a motion to suppress the pills taken from his car. The Honorable Catherine C. Blake, widely know as a wise and fair jurist, granted the motion.

By way of background, a police officer can, of course, pull a driver over for a violation of the traffic law. But the officer can't keep a person pulled over for longer than giving them the traffic ticket would take, unless the officer has a reasonable, articulable suspicion that the person driving the car has committed a crime.

Judge Blake determined that the officer kept Mr. Digiovanni by the side of the road longer than necessary to run his license and issue a warning ticket. She found there was no reasonable suspicion of him as a drug dealer, since, as the Fourth Circuit put it, his "appearance and demeanor fit in the category of a retired person, one driving from Florida to the northeast."

Judge Blake found the officer's reliance on Mr. Digiovanni's clean car, his shirts hanging so that they wouldn't wrinkle, and his toiletry kit "suspect, because he offered no 'reasonable explanation' for relying on these factors."

Because the officer took longer than he needed to run the license and issue a warning ticket, and he had no reason he could point to for why he thought Mr. Digiovanni was suspicious, the permission that Mr. Digiovanni gave to search his care later was tainted by the officer's prior illegal detention. Thus, the evidence was suppressed.

Recently, the Fourth Circuit held that the government cannot deny someone who pleads guilty the third level for acceptance of responsibility under 3E1.1. Here's my earlier post on the Fourth Circuit opinion (which describes the issue in much more detail).

Today, the Second Circuit joined the Fourth Circuit's celebration of giving full sentence-reduction credit to people who plead guilty.

In United States v. Lee, the defendant, Mr. Lee entered a guilty plea and did it soon enough that they knew they wouldn't have to prepare for trial. The government refused to move for a third level reduction in Mr. Lee's sentencing guidelines under 3E1.1, though, because Mr. Lee had the temerity to disagree with the government about what happened in the crime.

He entered a guilty plea, but, apparently, did not fully submit to the will of the United States government, and so they had to have a sentencing hearing. The Second Circuit's opinion is not crystal clear on the government's reasoning, but, apparently, the government wanted Mr. Lee to spend more time in prison because either (1) he disagreed with the government, or (2) he made them do extra work.

The Second Circuit held that the government's refusal to move for the third level was unlawful. The court said that the government cannot withhold the third level simply because they have to prepare for a sentencing hearing, relying heavily on the Fourth Circuit's decision in Divens.

Let that 3E1.1 law keep developing in a way that gives people credit for giving away their rights in a guilty plea.

The people of Port Naches Texas had to leave their homes when Hurricane Gustav threatened. While they were away, homes were burgled. A shotgun and a rifle were stolen from a house.

Those weapons were later resold to a guy named Robert Newsom. They were sold by a white man who Newsom knew was a member of the Piazza family and a woman. The man was tattooed and bald. The woman said the guns used to belong to her father, but he died. Newsom paid $175 for the guns.

Newsom later heard about a burglary of some guns during the hurricane evacuation and became suspicious. He went to the police with his newly acquired guns. The police found the woman, Sandy Guilbreaux, who confessed. Sandy was married to Jed Piazza, but told the police that it was Jed's brother Chad who sold the weapons with her.

The police went after Chad. Newsome picked him out of a lineup that did not include Jed, though he noted that the guy in the picture had hair, and the guy he bought the guns from didn't.

Jed is bald. Chad is not.

Newsom's phone showed that he was called from Jed's phone to set up the gun sale.

The federal government took an interest in this case, and prosecuted Chad for selling the guns. Chad was convicted and sentenced to thirty-three months in prison.

The defense theory was that Ms. Guilbreaux was lying to protect her husband. Ms. Guilbreaux gave conflicting statements when she testified about how much hair Chad had, eventually settling on the idea that he had just shaved his head. She admitted that she had trouble remembering things because she had psychological issues and took prescription medicine that made her forgetful. She lied about being previously convicted for theft.

Chad and Jed's mother testified that Sandy told her that she was lying to the police about who she sold the gun with.

After the trial, Jed and Chad's brother Darrin came home from a time in prison. He had been home when the gun-selling happened and wrote an affidavit that he was with Chad during the time of the gun sale. On the night of the gun sale, Darrin swore that,

Around 9:00PM, my brother, Jed Piazza and his common law wife Sandy arrived in a blue colored sedan that looked like an old police car. Jed drove that type of vehicle during hurricane evacuations so he would not be stopped by police. At this time, I was outside smoking cigarettes with one of my other brothers, Steve "Bubba" Piazza. Jed told Steve that he had some guns in the trunk of their car that they wanted to sell. Steve told Jed that he knew of a guy that purchased guns from him in the past but this buyer would not buy stolen guns. Upon hearing this, Sandy, Jed's common law wife, said that the guns were her father's. Jed then called this person's phone number he got from inside a spiral notebook Steve had of everyone's numbers. I believe this person's name is Robert Newsome [sic].

Chad's lawyer filed a motion for a new trial based on Darrin's statement. The district court granted it.

The government appealed, apparently wanting to make sure there was a circuit court opinion describing their decision to prosecute a case in federal court based on the testimony of the wife of the chief alternative suspect who suffers psychological problems, has a criminal history that she lied about, and told another witness that her husband committed the crime.

Imagine that you know someone who committed a federal crime.* A friend, let's say. You want to be supportive, so you go to the sentencing hearing.

You walk into the federal courthouse and marvel at the mahogany and the marble. The courtroom is vast. At the hearing you will learn what will happen to your friend's future. Will he be sent to prison? If so, for how long? Will his wife have to sell their house?

At the hearing, what would you expect the lawyers and the judge to talk about? Certainly they'll talk about the crime and how that happened. The judge will want to know why the crime was committed before imposing sentence, you'd think. You can imagine that the lawyers and the judge will talk about whether your friend is otherwise a good person.

Instead, to use the issue presented in the Eighth Circuit's opinion in United States v. Butler, at a sentencing hearing in our federal

This is not a machine

courts, you would hear a lengthy discussion of whether the crime of passing a counterfeit check in person at a bank is an offense that is "originated solely by paper instrument" as the terms are used in 18 U.S.C. S 1029(e)(1) (Spoiler Alert - It isn't.)

Why would you have been treated to this conversation? Why does the amount of time a defendant will be away from his family and his community turn, in part, on this language game?

After Booker, federal district judges are now able to disregard the sentencing guidelines, but the judge has to consider the guidelines, and wade through their many provision, and hear arguments about whether and how they apply, before they can be ignored. And the guidelines create a longer sentence if you create a means to make fake credit cards than if you create a means to make fake checks, to use the example in Butler.

The motivation for the crime, interestingly, has very little to do with the guidelines range. If the defendant stole a loaf of bread to feed his sister's child, he likely will receive no guidelines reduction. If he stole a loaf of bread and rendered it inedible, simply because he's a mean guy who didn't want someone else to eat, he would likely receive no increase in his recommended guidelines sentence.

The guidelines have made our federal sentencing hearings sound like tax audits. For much of these proceedings, they have bleached the morality out of the conversation, except to the extent that the moral system set up in the sentencing guidelines is in issue. Booker has made these hearings better, but, for the people coming to see them, they're still baroque lawyer games, more than meaningful conversations about how, as a society, we govern ourselves.

* It's easier than you might think to commit a federal crime. As the good conspirators Volokh have said "If you're reading this, you're probably a federal criminal". Part of the problem that causes overcriminalization is that anytime any issue hits the news, legislators look to score cheap political points and start looking to criminalize something - anything - so that they can get favorable TV coverage. Think of Caylee's law, but repeated in 535 small ways through 112 sessions of Congress.

Zoraida Pena Canal was like any other live-in nanny, except she worked from 6 a.m. until 10 p.m., wasn't allowed to talk with anyone other than the family she worked for, her employer held her passport, and she wasn't paid for the two years she worked as a nanny.

Her employer, Mabelle Dann, was convicted at trial of document servitude in violation of 18 U.S.C. S 1592, forced labor charges in violation of 18 U.S.C. 1589, and immigration charges. She was sentenced to five years in prison.

As the Ninth Circuit's opinion in United States v Dann, by Judge Gertner of the District of Massachusetts, sitting by designation, starts:

The parties at trial and on appeal present two competing narratives. Dann contends that this case is a not unusual story of the relationship between two women, with all its ups and downs. As a divorced, single mother with three small children, Dann was desperate. She gave Pena Canal the opportunity to come to the United States, and she treated her as a family member. Dann took care of, housed, and fed Pena Canal, and wanted to pay her as soon as she had the chance. Dann hoped to give Pena Canal a room of her own but was unable to do so. The two women had their fights, as all family members do. After Pena Canal left Dann, she discovered that she could obtain a T-Visa and stay in the United States, as long as she testified against Dann.Pena Canal's testimony is tainted by her incentive to lie.

The government in turn portrays a woman who went to great lengths to violate immigration laws so that Pena Canal could work for her. She needed cheap -- or free -- labor, and this was her means of procuring it. Her behavior towards Pena Canal became worse and worse over time, culminating in Pena Canal's working without pay in slave-like conditions, fearful of what would happen if she were to leave.

Dann challenged both the fact of her conviction and the sentence. Both were upheld.

I won't spend much time on the facts, except to note one exchange in the trial testimony where Ms. Dann and Ms. Pena Canal were arguing over whether Ms. Pena Canal was a slave. She wasn't allowed to leave the house, talk to anyone else, and hadn't been paid. To my mind, if you're arguing with your unpaid employees over whether you're a slave holder, you probably are.

The case presents, though, a remarkable restitution issue.

Ms. Dann was ordered to pay significant restitution to Ms. Pena Canal for holding her in slavery and not paying her for two years.

Ms. Dann was owed back child-support from the father of her children. The district court held that this child support debt was properly disgorgeable to Ms. Pena Canal as restitution. The money had already been spent, and was payable to Ms. Dann, the court reasoned, so it is Ms. Dann's money, and is subject to the restitution order.

The Ninth Circuit disagreed. The appeals court held that because child support payments are always the property of the child, provided the child is not yet an adult, they can't be ordered disgorged from the parent in a restitution order.

That much seems reasonable -until you think about it. The child support was, in part, for services provided by Ms. Pena Canal. And Ms. Dann is going to spend five years in prison, where she most certainly won't be supporting the kids with the income that comes in from the back child support.

So, to recap, the State of California will collect the back child support through its child support enforcement mechanisms. The money will not go to Ms. Pena Canal, the woman who did the actual work of parenting. Instead, the child support will go to the woman who is unable to support the children, because she's in a federal prison for five years.

The court recognized this is more than a little odd, and that the district court's order including the child support arrearage in the restitution order does seem equitable. But the court determined that the law is clear,

under California law, a creditor (in this case a crime victim with a restitution order) is not entitled to accrued child support payments owed to a custodial parent of children who have not yet reached the age of majority.

This is a tricky problem. Someone is going to have to watch over and support those kids. Ms. Dann won't be in a position to do it while in prison. If she gets the child support arrearage, and uses it to support the kids while she's not able to, I suspect most people would be comfortable with that.

How should we think about seeing a sentenced reversed? Is it a statement about the quality of the district court judge? To be sure, a United States district judge will not pop the champagne on hearing she's been reversed. But, ultimately, should we think that the appeals court is commenting on the ability of the district court judge when it sends the district court's work back for a do-over?

I tend to think we shouldn't. It appeals the Sixth Circuit disagrees with me in United States v. Priester. (For Sentencing Law & Policy coverage, go here.)

Mr. Priester entered a guilty plea to a number of drug charges, including crack distribution. His lawyer argued that the judge should reject the guidelines because they reflect a policy decision that crack cocaine is worse than powder cocaine. The district court judge, on the Sixth Circuit's reading of the transcript, said he didn't think he had the power to reject sentencing guidelines.

As it happens, the district judge was wrong. After the sentencing, the U.S. Supreme Court held, in Spears v. United States, that a district court judge does have the authority to disagree with the decision reflected in the sentencing guidelines about how bad crack cocaine is.

In essence, the district court judge in Priester thought the law was one way. The Supreme Court later said it was another.

The Sixth Circuit goes out of its way to say just how awful it feels that the district court is being reversed here. The court starts the opinion by noting that "[i]n some cases we hold the district court to a standard we would dislike imposing on ourselves." The court later says that it is vacating Priester's sentence "on the admittedly unfair ground of insufficient clairvoyance."

Is there any argument that fairness to the district court is a proper ground to consider in a decision?

One can appreciate the social dynamics at play in a reversal - circuit court judges see district court judges in a number of fora. The circuit court wants to send a message to the district court that the reversal is not a reflection on the district court's work or value as a judge. But surely that sentiment is better expressed in something published by Hallmark than in a federal reporter.

Of course, a lawyer does not transform into a district judge by being sloppy about his or her work. A district judge is never going to want a court of appeals to say they got it wrong.

This Judge Does Not Like To Be Reversed

Yet courts of appeals do not exist to validate district judges. If anything, courts of appeals exist to give people a sense that a fresh, unbiased, triple set of eyes will look at each case. If the circuit court goes out of its way to assure the parties and the bar that its worried about how a reversal will effect the district court judge, as opposed to the man sentenced to fifteen years in prison, it threatens to undermine our collective confidence in these courts as that detached second look.

A contrary perspective, in a slightly different context, was recently given by Judge Reinhardt of the Ninth Circuit. As the ABA Journal put it, the Ninth Circuit "took another beating" by the Supreme Court last term. Judge Reinhardt was sanguine about his role in relation to that reversal rate,

"If anything, it's a compliment. I get treated like the others on the [Supreme] Court," he told the Los Angeles Times. "If you follow the law the way it is, before they change it, you're going to get reversed."

As you may have noticed, this blog has a post on every published decision from a federal court of appeals that is a direct appeal from a criminal case and is a defense win.

A very good question is why this is useful.

There are already a lot of very good legal blogs. How Appealing is, of course, the gold standard in coverage of the goings on our nation's appeals courts. Sentencing Law & Policy is a tremendous resource for people who are interested in the latest developments on sentencing law and policy (it's very well-named). A loose coalition of federal public defenders run a set of blogs on criminal law developments in the circuits, aggregated at the D-Web Law Blogs site.

If you're looking for factual information about how the law develops, the blogs above, and many others, are already out there to help. Surely, by focusing only on cases where the defendant wins, a diligent reader will not leave with a representative view of the law or the country. The Ninth Circuit pops up more than, say, the Fourth. The majority of criminal appeals do not go well for the defendant who is appealing.

In light of what's already there, why post about every published defense victory in a federal criminal case?

I have three reasons:

First, because I'd like to post a little more in depth on each case, and that requires not writing about everything. I'd like to be able to write about cases so that my smart friends who aren't lawyers can understand what's happening, and whether it's something they agree with. The law shouldn't be inaccessible to nonlawyers -- at least not criminal law. By taking time with each case, I'm hoping I can write about the law in a way my mother, or yours, can understand. This is our government, putting people in cages. That's not always wrong, but it shouldn't be opaque.

Second, because it's a good way to canvass a number of areas of the law. Though the sample won't be random, it will be diverse. And diversity is fun and good. We'll touch on sentencing, on what counts as a crime, and on how the process of federal criminal law works.

Finally, I think this makes sense because criminal defense attorneys, especially ones who practice in federal court, need to be reminded that we do win. When I interviewed for a job with a federal public defender's office years ago, I was told that a lot of what the office did is "redefine victory." I get that. It matters if a client gets two years instead of eight as a result of a lawyer's smart work in negotiating a plea in exchange for sentencing concessions. Even with that success, the client is still going to prison. It's nice to see a court say "Reversed" when something bad happens to a client. This series celebrates that.

If you have questions or comments, send me an email or post here. Otherwise, enjoy!

It's a surprise to many people that when you go to sentencing in federal court, you aren't sentenced just for the conduct you were convicted of. Rather, there's no limit on what a federal judge can consider when it imposes sentence on someone.

For some kinds of sentencing considerations, that makes sense. If the person being sentenced spends every Saturday volunteering to help aged nuns, it's the kind of thing we all think the court should be able to take into consideration when imposing sentence.

Some categories of information are more troubling though. None is more troubling than a sentence based on other criminal conduct that was either not proven to a jury, or, worse, where a jury has already rejected the evidence.

One problem with relying on other criminal conduct that wasn't submitted to a jury is that the vetting of the facts is less stringent. United States v. McLain shows why.

McLain ran a staffing agency. He employed a staff of nurses. He classified them as independent contractors instead of employees, and didn't pay or account for employment taxes. Willfully failing to pay or account for one's tax obligations violates 26 U.S.C. S 7202. Mr. McLain was sentenced to 48 months in prison.

The Eighth Circuit rejected his arguments that the district court misconstrued section 7202. To be sure, it is an unusually aggressive move to bring a tax prosecution for wrongly classifying people as independent contractors when they are employees. Much of the government's proof here, it appears, turned on a question of state regulation of nurses.

At sentencing, the court included in its calculation of tax loss, which, in turn, drove the guidelines calculation, two tax deduction "gifts" to two other people. Basically, Mr. McLain told two people to take deductions that they were not entitled to. If they had taken his advice, it would have increased the amount of tax that would have been uncollected -- his sentence was increased based on this counterfactual tax loss.

The government argued that this advice violated 26 U.S.C. S 7206(2), which criminalizes helping someone else prepare file a false tax return. So, even though Mr. McLain wasn't charged with helping the two other people to prepare a false tax return, the court looked at the advice he gave them, and decided that was good enough.

The Eighth Circuit disagreed. The appeals court noticed that helping someone prepare a false tax return requires that the people actually prepare a false tax return. Because the sentencing court didn't look into whether false returns were ever filed, or make any kind of factual determination about a return ever being filed, McLain's sentence should not have been increased for helping someone file a false tax return.

Surely, had that gone to a jury, the government would have focused on that question more clearly. The court would have looked to make sure all the elements were met and prepared a cleaner record on whether McLain met all the elements of the crime he was sentenced for having committed.

Earlier this week, as I pointed out here, the Ninth Circuit reversed a conviction against a man for making a number of statements about Barack Obama's race, and how he'd like to see then-candidate Obama shot.

Two very good pieces, from different perspectives, are at The Volokh Conspiracy, and the San Diego City Beat. The Volokh post spends a lot of time on the Supreme Court's decision in Watts, which, of course, is the case to read on the issue. The City Beat provides more context on how this kind of prosecution matters to politics. It was a lot like Judge Reinhardt's opening in the opinion, only talking more about the Tea Party of today than the mean words used against Abraham Lincoln.

What I haven't seen, and I'm kind of surprised that I haven't seen it, is a discussion of Bagdasarian in light of the tragic shooting of Gabrielle Giffords. The court's holding likely means that the only remedies we have to cool our political rhetoric are outside of the criminal law -- which strikes me as not necessarily bad -- but I would have thought someone would complain loudly about that implication of the decision.

If you come to the United States from another country, and you aren't really here with permission (that is, you come in violation of U.S. Immigration law), and you're sent back to your home country, but then decide to come back to the United States, odds are you have committed the federal crime of illegal reentry. This is a violation of 8 U.S.C. S 1326(a). The crime is commonly called illegal reentry.

This crime gets committed a lot. And it gets prosecuted in any place where a person who has returned to the country after a prior deportation is discovered. Illegal reentry can be prosecuted in Texas, and it can be prosecuted in Iowa.

(though, as an aside, there's a much larger population of recent immigrants in Iowa than you might think. My hometown of Perry Iowa, for example now has a very good Mexican restaurant. Iowa is trying to respond to these new Iowans in what I think of as a characteristically kind and reasonable way.)

Border districts have many more illegal reentry cases than they can reasonably address. In order to encourage people to plead guilty quickly, so these courts can dispose of these cases, many federal prosecutors on the border set up "Fast Track" programs. Though these programs have now spread beyond the border - Nebraska has one, for example.

Fast Track programs let people get a much lower sentence if they plead guilty quickly, agree to a statement of facts offered by the government, and give up certain rights.

A Very Different Kind of Fast Track

Generally, Fast Track programs are only available to people caught along the border. Folks charged with illegal reentry in other parts of the country have cried foul. If you're caught in Maryland, which does not have a Fast Track program, why should you serve longer than if you're caught in Texas, simply because of a program to manage the court's docket. That doesn't seem like justice.

The federal law that governs sentencing factors, 18 U.S.C. S 3553, even tells judges, in subsection (a)(6), that they should avoid treating people accused of the same crime with the same criminal history differently.

a defendant claiming entitlement to a lower sentence because of a perceived fast-track "disparity" must promptly plead guilty, agree to the factual basis proffered by the government, execute an enforceable waiver of specific rights before or during the plea colloquy, establish that he would receive a fast-track sentence in at least one district offering the program, and submit a thorough account of the likely imprisonment range in the districts where he is eligible, as well as a candid assessment of the number of programs for which he would not qualify. Unless the defendant complies with each of these steps, the sentencing court will be free to reject the argument without comment.

The court was troubled by how much other districts vary in the way they give a reduction for participation in a fast track program. To be sure, that's troubling, though I tend to think it's troubling more as a matter of national policy than of being too lenient to someone who is going to spend four years or so in one of our federal prisons.

If Nebraska gives two levels off of the sentencing guidelines, and Texas gives six, should a defendant in Illinois get two levels off or four under a disparity argument, if they meet all the requirements of both Texas and Nebraska? What should happen, of course, is that in Nebraska, defense counsel should start making Fast Track disparity arguments relative to Texas, so that, later, the Illinois case should look to Texas instead of Nebraska.

Which raises another interesting point - judicial districts vary by their adherence to the guidelines. Are those cognizable as a 3553(a)(6) argument? They should be, of course, but I could see how a defense lawyer would be skeptical to make it - the judge you're trying to convince is the same one you're saying is outside of the mainstream of harshness.

Back to Ramirez, the court did note that proving that any individual defendant should have been eligible for fast track, and how much, is complicated and will be difficult work. They are absolutely right about that.

The court affirmed the sentences in the case, but modified the sentence of one of the defendants to clarify that he is not required to participate in the Inmate Financial Responsibility Program. That is perhaps not the most significant defense win.

In my experience, many federal prosecutors play fair. They want to get their conviction, to be sure. The law gives them many advantages, and they're happy to avail themselves of what the law gives them. But I don't know of many federal prosecutors who go out of their way to take away a defendant's lawyer.

Then again, I don't practice in Georgia.

The Eleventh Circuit, today, reversed and remanded a case where a criminal defendant went to trial without a lawyer, because the government opposed him receiving appointed counsel. The case is United States v. Ly. Apparently, in some U.S. Attorney's Offices, they read Gideon narrowly.

Shortly after he was charged with filling prescriptions "outside of the usual course of professional practice and without medical purpose", under 21 U.S.C. 841(a)(1) and 21 C.F.R. section 1306.04, Mr. Ly, asked for appointed counsel. The government opposed his request for a lawyer. A magistrate judge worked with federal probation, and determined that Mr. Ly's wife had significant assets, and that Mr. Ly had shared these assets with his wife. So the court determined that Mr. Ly cannot have an appointed lawyer.

The court's strategy, apparently, was that Mr. Ly would come up with the money if the request for appointed counsel was denied.

Mr. Ly did not come up with the money. He went to trial without a lawyer. The government's case in chief consisted of:

(1) expert testimony about the regulation of controlled substances; (2) expert testimony regarding standard prescription practices and how Ly's actions deviated from those standard practices; (3) testimony from eleven of Ly's patients explaining Ly's prescription practices; (4) testimony from four retail pharmacists who became suspicious of Ly's practices and therefore stopped filling prescriptions written by Ly; (5) evidence that pharmaceutical companies sold large quantities of controlled substances to Ly and that one company stopped selling to Ly because of these purchases; and (6) the results of a lawful search of Ly's house and office.

In response, Mr. Ly tried to call his prior patients to testify that he was a good doctor who provided quality care. The court would not let him. He called a few witnesses, who offered little in support of his cause.

When the rest of Mr. Ly's evidence was in, the judge had this conversation with him:

THE COURT: All right, Dr. Ly, I've heard you say that you have no more witnesses. Do you intend to testify in this case?

DR. LY: No, Your Honor.

THE COURT: Now, do you understand that you have an absolute right to testify in your own behalf?

DR. LY: Yeah, I know, but without counsel, Your Honor, I can't testify.

THE COURT: So it is your personal decision not to testify in this case?

DR. LY: Because I don't have counsel who can ask me questions.

THE COURT: Is it your personal decision not to testify in this case?

DR. LY: What do you mean, Your Honor?

THE COURT: Well, I've told you you have a right to testify. Is it your personal decision not to testify in this case?

DR. LY: No. I decide not to testify because I don't have counsel to ask me questions. I cannot just be cross-examined without my counsel to ask--my own counsel to ask me questions.

THE COURT: So you choose not to testify, then?

DR. LY: If I don't have my own counsel -

THE COURT: - Well, you know you don't have counsel, Dr. Ly. That's not the question. You've not had counsel since this trial started. Now, this is your opportunity to testify or not testify, and I want you to tell me on the record whether you intend to testify or not testify.

DR. LY: That decision I can't make--I can't make it in the split of a second, Your Honor. Could you give me . . .

THE COURT: Well, I'm assuming, then, and I'm taking that as a decision by you not to testify in your own behalf in this case.

DR. LY: I wouldn't agree with that.

THE COURT: Well, we've got a jury sitting in the box, and it is your time to testify. And so you're going to have to make that decision, and you've had months leading up to this trial to make that decision. Now, I'm not going to keep everybody waiting. I'm not going to keep the jury waiting, so you make a decision right now whether you're going to testify or not testify.

DR. LY: I'm not going to testify.

Mr. Ly did not testify, was convicted, and was sentenced to serve 97 months in prison.

The thing about that conversation that the court had with Mr. Ly is that Mr. Ly is actually wrong when he says he can't testify unless he has a lawyer. He can testify, he'd just testify in the narrative - he'd just talk, instead of being asked questions. But the district court judge never corrects that mistake, and allows him to persist in the belief that he's unable to testify because he has no lawyer. Unable to call any witnesses or produce any other evidence, Mr. Ly doesn't testify because he thinks he isn't allowed to.

The Eleventh Circuit today said that violated Mr. Ly's constitutional rights and reversed and remanded.

The issue is tricky - as the court explains, normally there's a default position on a constitutional right:

In the right-to-counsel and guilty-plea contexts, the district court must satisfy itself that the defendant has waived his right knowingly and intelligently . . . and if the court is not so satisfied, it forces upon the defendant the constitutional default. In the case of the right to counsel, the default is an appointed attorney [sic - as to the facts of appointing counsel in this case], and in the case of a jury trial, the default is a plea of not guilty, followed by a jury trial.

In a question of whether to testify, there's no default. A criminal defendant has an absolute right not to testify and an absolute right to testify. It's totally his choice either way.

The court notes that this decision is normally informed by counsel. Here, the government went bare-knuckles to keep Mr. Ly from having a lawyer. So a lawyer he was kept from having. When a criminal defendant goes to trial without a lawyer, it is exceptionally hard to make sure his constitutional rights are not violated.

Pro se defendants are, frankly, a problem. It's sad and wrong to have someone go without a lawyer when their freedom is at stake. If the person freely chooses to go it alone, the court has to let him engage in that folly. But here, where a person was asking, repeatedly, for a lawyer, to force him to trial without one is wrong.

If the government's concern was that Mr. Ly was hiding money and trying to avoid paying for counsel, they had another option. The government, instead, could have sought appointed counsel and asked for a contribution order. That way, if Mr. Ly was convicted, at the time of sentencing the court would have conducted an inquiry into what money was available to pay the lawyer for his services from Mr. Ly's funds. And the court could have made then ordered Mr. Ly to pay as much as he was able for his own defense. Here's a link to one way to do the order from the U.S. Court's webpage.

The government did not ask for a contribution order. They asked for a trial without defense counsel. Looks like they may get another one.

Walter Bagdasarian really did not want Barack Obama to be President. As the general election drew near, and Obama's election seemed more certain, Mr. Bagdasarian decided to take action. Instead of volunteering for McCain, or sending money to the Republican National Committee, he logged on to a Yahoo! Finance message board and posted two comments responding to the state of the election.

The comments including disparaging remarks about Mr. Obama and Mr. Obama's race, and noted that Mr. Obama "will have a 50 cal in the head soon." Mr. Bagdasarian also included a call to "shoot" Mr. Obama. He challenged Mr. Obama's fitness for office by virtue of status as an African American, claiming that no African American has ever done anything in history, except open a "sambos" restaurant. (Mr. Bagdasarian did not seem to realize that Sambos was actually owned by two white men, though that may not undermine his larger, and repugnant, point.). Perhaps it goes without saying that Mr. Bagdasarian did not use the term "African American."

Mr. Bagdasarian's comments did not alter the course of the election. They did, however, cause a participant on the message board to contact the Secret Service. Mr. Bagdasarian was interviewed by the Secret Service. His house was searched and a fifty caliber rifle was found. His computer was searched and an email was found that described a method for blowing up the President's car, as well as Mr. Bagdasarian's desire to see that car blown up. As the Ninth Circuit put it, "[t]hese email messages would appear to confirm the malevolent nature of the previous statements as well as Bagdasarian's own malignant nature."

Mr. Bagdasarian was charged with two counts of violating 18 U.S.C. section 879(a)(3), which criminalizes threatening to kill or harm "a major candidate for the office of President of the United States."

(And, yes, gentle reader, that's really the language - does section 879(a)(3) prohibit threatening Ron Paul? Or Ralph Nader? Part of me would love to challenge the constitutionality of the "major candidate" part of that statute. Still, Obama unarguably counted after at least the Iowa caucuses.)

Mr. Bagdasarian lost at trial on stipulated facts. Which is to say, he agreed with everything that happened, he just didn't think he had committed a crime. A federal district court judge thought he had. The Ninth Circuit, however, held that he hadn't in their published opinion in United States v. Bagdasarian.

Judge Reinhardt's majority opinion opens with a walk through the ways American presidential candidates have been maligned through our history. If you're looking for a reason to be depressed about American democracy, this is a decent place to start.

The Ninth Circuit clarified that for a criminal threat statute to apply to pure speech, that speech has to constitute a "true threat." The question, then, is whether two things are true: (1) whether Bagdasarian subjectively intended to cause bodily harm to the President; and (2) whether a person looking at Mr. Bagdasarian's actions and statements would think that he intended to cause bodily harm.

The court found that Mr. Bagdasarian's directive to shoot Mr. Obama is not an expression of an intent to cause harm to him; it "is instead an imperative intended to encourage others to take violent action, if not simply an expression of rage or frustration. The threat statute, however, does not criminalize predictions or exhortations to others to injure or kill the President."

Mr. Bagdasarian had, of course, a 50 caliber rifle in his possession when he made the statement that Mr. Obama should be shot with a .50 caliber rifle. The court discounted this, because no one in the chat room knew that he had that rifle.

The court concluded, therefore, that Mr. Bagdasarain's comments, loathsome though they are, were the kind of rough and tumble political speech that our constitution allows.

Judge Wardlaw dissented. She agreed with the statement of law, but found that this was a true threat, and that Mr. Bagdasarian actually threatened Barack Obama with bodily harm both subjectively and objectively.

The interesting thing, I think, is the way her dissent reads. She has a lengthy statement of facts and an independent statement of the law that, in many ways, repeats the discussion in the majority opinion.

A federal district court judge has broad powers in a federal sentencing. Sadly, often the judiciary fails to fully grasp the extent of its power. When that happens, a federal appeals court remands for resentencing.

For example, suppose a district court judge says at sentencing to the defendant, "You seem like a very kind person, but I can't give you a lower sentence just because you're a kind person -- the law won't allow it." That case is going back on remand. Eighteen U.S.C. section 3553(a) directs a district court to consider the characteristics of the person being sentenced. One of those, obviously, is whether he's nice.

When you think about it, this is kind of an odd situation. The district court is saying that it is moved by something, but can't consider it. Perhaps there's a bit of "don't throw me in the briar patch" syndrome going on -- the judge is moved, and wants to go lower, but feels that if he or she shows mercy to someone convicted of a serious offense it won't be good. So rather than simply owning that decision, one can empathize with why a judge would want to say the law won't let him make that decision. It's easier if the law takes away his ability to be merciful.

In United States v. Delany, the D.C. Circuit reversed and remanded because the district court believed it did not have the power to consider something at sentencing. As the court noted, a district court has to consider any serious argument that a lower sentence is warranted based on age, lack of criminal history, efforts at rehabilitation, or attempts to cooperate with the government.

"Indeed, '[n]o limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.' 18 U.S.C. S 3661

After making this statement, the D.C. Circuit then goes on to, well, I don't know. Except for the conclusion that the sentence was reversed and a Fourth Amendment issue didn't go the defendant's way, the rest of the opinion is redacted.

So we don't know what it was that caused the district court to get reversed.

This, personally, is annoying. I practice in federal court in D.C. I need to know what the sentencing law is in the jurisdiction that I practice. I know that the U.S. Attorney's Office has a copy of this opinion -- my opposing counsel now knows the law as expressed in this case. But I don't. And I don't get to.

There are good reasons for redaction, especially when I'm asking for it. But this appears to be a case important enough to warrant publication -- it would be nice to know what it says. Redaction makes sense in many cases in the district court. But if the issue is important enough for it to be the basis of a D.C. Circuit opinion, it raises significant questions about how we are to know how the law is developing.

The University of Nebraska is known for its tremendously powerful football program. It has less of a reputation for academic prowess. Which has been the inspiration for the following joke --

Question: What's the N on the side of the Nebraska football helmet stand for?

Answer: Knowledge.

Admittedly, the joke works a little better when delivered orally.

The Eighth Circuit today reversed a Nebraska district court for discounting the importance of knowledge in a securities fraud case in United States v. Behrens. A bit of background is in order:

There is an odd sentencing provision that applies in securities cases. Under 15 U.S.C. section 78ff(a), if a person is convicted of an offense that uses section 78ff to define the offense's penalty, and that offense relies on breaking a rule or regulation of the Securities and Exchange Commission, and the person can prove at sentencing that he had no knowledge of the rule, then, regardless of the fact that he was convicted of a crime, he cannot serve a sentence of imprisonment.

This is called the "Know Nothing" defense. Note, the Know Nothing defense is not really a defense -- rather it's a sentencing rule. It is a defense to having to serve time in prison, not to a conviction. (though, of course, avoiding prison is still tremendously valuable to someone faced with not avoiding prison)

Behrens was convicted, indeed, he plead guilty, to using the mail to fraudulently or deceptively contravene a rule of the SEC under 18 U.S.C. section 78j(b). He tried to assert the Know Nothing defense, but the district court said that it was not applicable to that securities fraud statute.

The Eighth Circuit looked at the statute and held that the deception has to subvert an SEC rule -- the violation of the rule is, therefore, an element of the offense. Finding that the district court in Nebraska erred in its interpretation of the statute, the appeals court reversed.

Fear not, pro-government readers, Mr. Behrens will still have to prove his lack of knowledge on remand.

One interesting question is why the prosecutor didn't simply require a plea to mail fraud to avoid this issue. Perhaps it had to do with giving law enforcement a securities fraud stat instead of a general fraud conviction Or maybe the U.S. Attorney's Office in Nebraska was frustrated by the lack of 8th Circuit law on this question, and wanted to present it to the appeals court. If so, kudos to that office for structuring the plea in such a way as to allow the law to develop.

Perhaps the "N" stands for Nothing, in "Know Nothing"? For a list of other suggestions, please see the comments section on this post at a Nebraska Football fan site.

Felix Sanabria is either a humble fisherman trolling the waters off of Puerto Rico, or, if the government is to be believed, he's a serious drug importer. Whichever he is, his federal drug conviction was reversed on appeal this week by the First Circuit in United States v. Sanabria.

At trial, the government relied on the testimony of witnesses who fingered Mr. Sanabria. The case turned on three transactions where drugs were exchanged. No photographs were ever taken of the person the government said was Mr. Sanabria -- a person known as "El Chapo."

At his trial, Mr. Sanabria's lawyer tried to mount a defense. Mr. Sanabria is, apparently, dark-skinned. One of the witnesses who testified against Sanabria had told a law enforcement agent that El Chapo was light-skinned. At trial, that witness said that Mr. Sanabria was El Chapo. His lawyer thought that maybe the jury should hear about that prior description, and he tried to ask the government agent who worked the case what that witness had said. The trial judge wouldn't let him on the theory that whether Mr. Sanabria matched the description of El Chapo was a collateral issue -- it wasn't relevant enough.

Mr. Sanabria's lawyer also tried to show that a government witness against Mr. Sanabria was intimidated into giving a statement implicating him. The judge said that the witness's motivation to give a false statement wasn't admissible. And the witness's prior statement about being intimidated couldn't be used against her now, because that statement wasn't made under oath (FYI, for the non-lawyers, statements can come into evidence when they aren't under oath -- in fact, it's rare for a statement to be made under oath before it's offered at a trial.).

Before the trial, a person who had met with Mr. Sanabria after he was arrested asked him if he was guilty. Mr. Sanabria said he wasn't, that they got the wrong guy. The government asked that witness if the witness thought Mr. Sanabria was lying about that. The witness said he though Mr. Sanabria was lying. The trial judge thought that question was appropriate.

Mr. Sanabria was convicted and sentenced to fifty years in prison.

The First Circuit carefully went through each of these issues, showing how they are, basically, not consistent with the law. The Court found that these mistakes by the trial judge "unavoidably call into doubt the reliability of the verdict and the underlying fairness of the trial." They reversed the conviction.

It's ironic in a sense. Some of the most complicated questions of federal criminal law have to do with calculating the way a person's criminal history intersects with the sentencing guidelines in a federal weapons charge. Yet weapons crimes are, themselves, generally unsophisticated. When a very good lawyer on a weapons charge gets paired with a stereotypical gun charge client, it creates odd pairings of super-geeky lawyers and folks who are attracted to the elegant simplicity of a hair trigger.

Which brings us to a reversal for resentencing in an appeal from a federal gun charge. The Tenth Circuit today reversed and remanded for resentencing in a gun case, United States v. Armijo. The basic facts are vanilla -- Armijo was convicted of possessing a gun. He's got a prior felony conviction, so that violates 18 U.S.C. section 922(g). The guidelines for a felon in possession charge depend on the defendant's criminal history. If he has two prior convictions that are either drug distribution charges or crimes of violence, then his guidelines start at a level 24 (assuming we're not talking about a machine gun).

The question is, what counts as a crime of violence? The phrase "crime of violence" is the rabbit-hole into which thousands of hours of attorney time have disappeared (though for a good reason -- the wrong answer from an appellate court can lead to thousands of years of people's lives disappearing into a less pleasant kind of hole).

What counts as a crime of violence doesn't just matter for the felon in possession guidelines. If a person is convicted of being a felon in possession and he's got three crimes of violence in his past, then he's an Armed Career Criminal. An Armed Career Criminal's statutory maximum is life, instead of ten years for a garden-variety felon in possession, and he is facing a mandatory minimum sentence of fifteen years.

So there's a decent amount of law on what convictions count as a crime of violence.

The Tenth Circuit today clarified that manslaughter in Colorado is not a crime of violence. It's an interesting call. On the government's side, manslaughter is specifically listed in the guidelines as an example of a crime of violence (it's in note one of the commentary for section 4B1.2). That seems like kind of a bad starting point for Mr. Armijo.

However, the Tenth Circuit notices that as Colorado defines manslaughter, it requires only recklessness, not a higher intent to actually harm someone. So, the Tenth Circuit concludes, this can't be a crime of violence, if a crime of violence is something that has, as an element, "the use, attempted use, or threatened use of physical force". Such use of force has to be on purpose for it to count as a crime of violence.

In other words, you can't accidentally commit a crime of violence in the Tenth Circuit. (or, as it happens, in the Fourth, see United States v. Peterson, 629 F.3d 432 (4th Cir. 2011).)

United States v. Duncan is a hard case that presents a hard issue of federal criminal appellate procedure -- if the appellant doesn't want to appeal, can the court hear the appeal? As it happens, in a very narrow set of cases, yes.

I won't go into what happened to get Mr. Duncan indicted, except to say that if we're going to have a death penalty, this is probably the kind of conduct that we're going to want it to apply to (seriously, skip the statement of facts in the opinion -- you'll sleep better).

At trial, Mr. Duncan fired his lawyers and said he wanted to represent himself. He's got a right to do that, if he can do it knowing what he's doing. The district court asked two experts to work for the court to see if Mr. Duncan can represent himself. They were in conflict, and the district court decided that he was competent and let him represent himself.

In a death penalty case, the jury first decides guilt or innocence, then decides, in a separate phase of trial, whether the sentence should be death. In the penalty phase, sophisticated counsel investigates heavily and digs deep to present a compelling case of why this person's life shouldn't be ended.

Here, Mr. Duncan merely took the stand, made no statements, and after the government declined to ask him any questions, sat down.

When a person represents himself, the trial court will often appoint standby counsel. The court in Mr. Duncan's case did that. After the jury sentenced Mr. Duncan to die, his standby counsel filed a notice of appeal.

Mr. Duncan wrote the court saying that he didn't want to appeal. The district court struck the appeal.

The Ninth Circuit being what it is, decided that it would decide whether it had jurisdiction to hear the appeal.

The appeals court first had to decide if it could hear the appeal. Mr. Duncan clearly didn't want it heard (the government didn't either). The only people involved in the case who wanted the appeal to be heard were Mr. Duncan's already fired standby lawyers.

The Ninth Circuit held that

"in the unusual circumstance in which the petitioner and his appointed attorney are actively contesting the petitioner's competence as between themselves, the lawyer, as a participant for the petitioner in the proceedings, is entitled to appeal the court's decision of mental competence, which would otherwise remain unreviewed in a death penalty case. Indeed, we recognized that in some cases a lawyer bears an ethical obligation, acting in the best interest of his client, to contest his client's competency to dismiss his action."

Death is different, and, when it comes to competency in a death case, the Ninth Circuit wants to hear the appeal.

The Ninth Circuit then reviewed the competency evidence and found that the district court should have held a hearing in order to evaluate whether Mr. Duncan was competent.

Joshua Kennedy was flying into Seattle from overseas. Customs searched his laptop and found child pornography on it. The appeal of his conviction was decided today by the Ninth Circuit today in United States v. Kennedy, presenting a really interesting take on the scope of federal restitution -- and the kind of harm that comes from the transportation of child pornography.

As an aside, let's stop there for a second. Did you know that the government can search you at the border (meaning, basically, anywhere Customs has a checkpoint)? Searches of computers at the border are way more common than I suspect most people suspect. Legal challenges are being mounted.

The searches of laptops at the border are invasive. And they don't require probable cause. Customs can search everything on your iPhone anytime you fly back from overseas. They don't need a reason. They can just take your phone and search it. Surely the amount of our personal lives that we keep on our computers and phones counsels in favor of rethinking this rule at some point. Is there a greater threat to national security, or whatever, if I email myself a file from Paris than if I put it on a thumb drive and carry it through Customs?

Anyway, back to the restitution issue.

Mr. Kennedy was convicted of transporting child pornography. The government asked the district court to impose a restitution order, because two of the women who were depicted in the images that were found on his computer. The government submitted evidence that having their earlier abuse viewed by strangers has been very damaging.

Psychologists presented evidence of the harm they'd suffered. One of the women said every time a victim notice came from a US Attorney's office she would have a panic attack (one would hope that she could simply take her name off of the notification list, but I know the federal victim notification laws are complicated).

One woman asked for $3 million. The other asked for $227,000.

The district court gave them $1,000 for each image they were in, basically throwing its hands up on how to figure out what the measure of damages for a situation like this should be.

The Ninth Circuit reversed. The Court noted that to succeed in a claim for restitution, the government has to show that the defendant's conduct was a cause of the harm that was suffered by the victim. So, here, the women seeking money would have to show that Kennedy's possession of their image caused them to be harmed.

The Ninth Circuit said, basically, no way. The women were harmed, to be sure, but Kennedy's possession of the images wasn't known to them -- if he hadn't possessed them, they would have been no better off. That he did possess them rendered them no worse off. So, because his possession didn't change the quantity or quality of harm suffered by the women, Kennedy didn't cause the harm.

It's a compelling theory of causation, I think, and it resolves what was developing into a thorny issue of public policy. Restitution in situations like this have been kind of a hot area in the press lately. This guy seems to have built a whole practice area on it. The New York Times has written about the controversy.

I can't wait to see how long it takes for the Supreme Court to reverse, or Congress to amend the statute.

The First Circuit today reversed a conviction in a federal criminal appeal. Or, at least one count of one of the co-defendant's convictions. His other nine counts of conviction withstood appellate scrutiny. Still.

In United States v. Newell, two men were accused of fraud involving an Indian tribe of about seventy people in the northern part of Maine. The opinion is exactly the kind that appellate courts should be writing -- it is dense and considers the arguments advanced by the parties in detail. At seventy-eight pages, it is perhaps not the terse read that most consumers of judicial opinions want. That said, if one important function of a court is to make sure the parties recognize that their arguments were heard, this opinion meets that standard. For the members of the tribe involved, there are almost ten pages of opinion per tribe member!

The reversal, though, is exactly the kind of appellate reversal that should happen. One of the men accused of the crime, Parisi, signed a check authorization for a person who was not employed with the tribe. Three witnesses for the government testified that they didn't recall if Parisi knew that the person didn't work for the tribe during the time period covered by the check. Parisi himself didn't work for the tribe during that time period. As the First Circuit noted, "we see no reason to believe that he knew,with in a few months of his arrival, where every tribal member had worked in the previous fiscal year."

You've got to feel for federal district court judges. No one wants someone else looking over their shoulder. Even though winning a federal criminal appeal is hard to do, district court judges still do get reversed more often than they'd like.

Yet, when it comes to pleading guilty, only the government can ask the defendant to give up his right to plead guilty -- the judge doesn't have a role in plea negotiations.

One district court judge in the Ninth Circuit had a novel solution -- he'd just negotiate, "man to man", his own appeal waiver with a defendant. Which gives rise to a remarkable Ninth Circuit opinion in United States v. Gonzalez-Melchor.

The Court told the defendant he'd sentence him below the guidelines, to something like 60 or 65 months (off the low end in the 80's), if the defendant would agree in open court not to appeal the sentence and "waste" everyone's time with an appeal. (in fairness, the court did retract the characterization of the appeal as wasteful (which is either ironic or appropriate since the Ninth Circuit reversed and remanded)).

Despite his "man to man" pledge not to appeal, the defendant appealed anyway. The Ninth Circuit, considering this court-negotiated appeal waiver, had little trouble finding the waiver invalid.

Sadly, the Ninth Circuit remanded for resentencing, thereby unraveling the whole deal, rather than letting the appeal go forward without the waiver. I'm looking forward to reading the opinion in a few years where the sentencing court gives the guy low end, and he appeals saying he should have gotten what he got the first time, and is only getting a higher sentence because he wouldn't agree to an illegal appeal waiver.

In a federal criminal appeal this week, the Fourth Circuit bucked a line of cases in other circuits and held that the government can't try to give a longer sentence to criminal defendants just because they won't give up their right to appeal.

A bit of background is helpful.

In the federal system, if a person enters a plea of guilty and accepts responsibility for their conduct, their federal sentencing guidelines level is reduced by two-levels automatically. If the government makes a motion for additional acceptance, the guidelines level will drop an additional, third level. The government is supposed to make that motion based on whether the person said he was going to plead early in the process, thereby saving the government time in preparing for trial (because, of course, using the government's resources efficiently is a factor in 18 U.S.C. section 3553(a)).

In United States v. Divens, though, the government said that they knew the defendant, Divens, was going to plead early. It's just that he wouldn't execute a plea agreement that gave up his right to appeal. The government said they wouldn't move for the additional level if it meant they had the possibility of having to do an appeal. At sentencing, without a government motion, the Court didn't give Divens credit for the third level.

Divens appealed, saying that the government can only refuse to move for the third level if they have to prepare for trial. Here, the government didn't have to prepare, because Divens said he'd plead early.

Stunningly, the Fourth Circuit agreed. Even though a number of other circuits have held that the government doesn't have to make the motion, the Fourth now requires the government to move for an additional level when trial prep has been avoided, regardless of whether the defendant will bend to additional government demands.

Why does this matter? Because in plea negotiations, the government often demands plenty of concessions that don't have anything to do with avoiding trial preparation. The government requires defendants to waive their ability to FOIA their investigative files (even though they likely couldn't get them anyway based on other FOIA exceptions), to waive their appeal rights, to give up forfeiture rights, to agree to restitution, and others. The threat the government uses is that they won't move for the third level if the defendant won't give up these rights.

So, after Divens, the threat of the third level should be substantially different in the Fourth Circuit.